The New Hampshire motion to compel: miss the 30 days and the clerk defaults you

Most states answer unanswered discovery with a motion to compel, an order, and only then sanctions. New Hampshire has that route too. But Rule 29(d) offers a faster one, and it does not require an order compelling anything: the clerk enters a conditional default, and if the defaulting party does not act within ten days it can become a default judgment with damages assessed.

If you are owed answers, that is the provision to read first. If you owe them, it is the one that should be in your diary.

The conditional default

If the party upon whom interrogatories or requests for production have been served, shall fail to answer said interrogatories or requests for production within 30 days, or any enlarged period, unless written objection to the answering of said interrogatories or requests is filed within that period, said failure will result in a conditional default being entered by the clerk upon motion being filed indicating such failure to answer.

Take the conditions one at a time.

It applies to interrogatories and requests for production. Not depositions, not requests for admission — those are dealt with elsewhere.

Thirty days, or any enlarged period. An agreed extension moves the date; nothing else does.

A written objection filed inside the period stops it. This is the escape, and it is available to anyone. An objection is not an answer, but it takes the party out of Rule 29(d) entirely.

The clerk enters it — but only on motion. The default is not automatic in the sense of happening by itself. Someone has to file a motion indicating the failure. It is automatic in the sense that no judge weighs it and no hearing is held.

Ten days, then a judgment

The party failing to answer shall receive notice of the conditional default. The conditional default shall be vacated if the defaulted party answers the interrogatories or requests within 10 days of receiving notice thereof and moves to strike the conditional default.

Note the conjunction. Answering is not enough, and moving to strike is not enough. The rule requires both, inside ten days of receiving notice.

Miss it and the other side may move on:

If the defaulted party fails to move to strike the conditional default within 10 days of receiving notice thereof, the adverse party may move to have a default judgment entered and damages assessed in connection therewith.

Damages are assessed on an affidavit, with a discretionary hearing: "If, upon review of an affidavit of damages, the court determines that it does not provide a sufficient basis for determining damages, the court may, in its discretion, order a hearing thereon."

If a default judgment does follow, setting aside a New Hampshire default becomes the next question.

The ordinary motion to compel

Rule 29(e) is the conventional route, and it is short:

Before any Motion to Compel discovery may be filed, counsel for the parties shall attempt in good faith to settle the dispute by agreement. If a Motion to Compel regarding requested discovery is filed, the moving party shall be deemed to have certified to the court that the moving party has made a good faith effort to obtain concurrence in the relief sought.

New Hampshire does not make you draft a certificate. Filing the motion is the certification — the rule deems it. That is convenient and dangerous in equal measure: you cannot forget to include it, and you cannot file without making it.

What the motion must contain

Rule 29(g) applies to motions to compel and to motions for a protective order alike:

Motions for protective order or to compel responses to discovery requests shall include a statement summarizing the nature of the action and shall include the text of the requests and responses at issue.

Two required components. A summary of the action — the judge reading a discovery motion may not know the case. And the text of the requests and responses, not a description of them and not an exhibit reference. Reproduce them.

After you win: ten days

Rule 29(f) sets the compliance clock, which many rules leave to the order itself:

Where a discovery dispute has been resolved by court order in favor of the party requesting discovery by court order, the requested discovery shall be provided within 10 days thereafter or within such time as the court may direct.

Ten days by default. The court can vary it, but if the order is silent the rule is not.

Fees run both ways — and only for bad motions

Rule 29(h) is narrower than the federal-style fee shift, and it is worth reading closely because it does not turn on who won:

If the court finds that a motion, which is made pursuant to this rule, was made frivolously or for the purpose of delay or was necessitated by action of the adverse party that was frivolous or taken for the purpose of delay, the court may order the offending party to pay the amount of reasonable expenses, including attorney's fees, incurred by the other party in making or resisting the motion.

There is no presumption that a losing party pays. The trigger is that the motion was frivolous or for delay, or was necessitated by conduct that was. And the remedy is discretionary — "may order" — where Rule 37 in most states says "shall." A New Hampshire motion to compel is a lower-stakes filing than its equivalent in Maine or Vermont, in both directions.

Protective orders, and their own deadline

Rule 29(a) carries the familiar list of protective orders. Rule 29(b) then adds a filing deadline that has no federal counterpart:

Motions for a protective order relating to trade secrets, confidential research, development or commercial information, or other private or confidential information sought through discovery shall be filed within the time set by these rules to respond to the discovery request or within 30 days of the date of automatic disclosure required by Rule 22 , including any extensions agreed to by the parties or ordered by the court, or within ten days of an order of production of records.

Three separate triggers, whichever fits. And one sentence that catches parties who think they have agreed their way out of the issue: "All protective orders, whether assented to or not, must be approved by the court." A stipulated protective order in New Hampshire is a proposal, not an order.

Rule 29(c) closes the loop the other way — if a protective order is denied in whole or in part, "the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery." Losing the motion can produce the order you were trying to avoid.

Where the requests came from

The discovery this rule enforces is set by the New Hampshire rules that precede it — automatic disclosure under Rule 22, written interrogatories under Rule 23, production of documents under Rule 24, electronically stored information under Rule 25, depositions under Rule 26, and requests for admission under Rule 28. Rule 29(d)'s conditional default reaches only two of them: interrogatories and requests for production.

A short checklist

If you are owed discovery:

1. Check the calendar before drafting anything. If 30 days have run on interrogatories or requests for production with no answer and no written objection, Rule 29(d) is faster than a motion to compel.
2. File the motion showing the failure — the clerk does not act on its own.
3. Watch the ten days after notice goes out.
4. Otherwise, confer first — Rule 29(e) requires a good-faith attempt, and filing certifies you made one.
5. Include the summary of the action and the full text of the requests and responses.
6. Expect compliance in ten days once you have an order.

If you owe discovery:

1. File a written objection inside the 30 days if you cannot answer. It stops Rule 29(d) cold.
2. If a conditional default is entered, do both things — answer and move to strike — within ten days of notice.
3. Do not rely on an assented-to protective order until the court has approved it.
4. Diary the protective-order deadline, which is the response deadline, not a date of your choosing.

Where these rules live

• N.H. Super. Ct. R. 22 — Automatic Disclosures
• N.H. Super. Ct. R. 23 — Written Interrogatories
• N.H. Super. Ct. R. 24 — Production of Documents
• N.H. Super. Ct. R. 28 — Requests for Admissions
• N.H. Super. Ct. R. 29 — Discovery Motions
• Responding to a New Hampshire complaint
• Setting aside a New Hampshire default

This page explains what the Superior Court rules say. It isn't legal advice, and the New Hampshire Circuit Court runs on its own separate rules that this page does not cover.